136-NLR-NLR-V-49-EDIRISINGHE-Petitioner-and-RAJENDRA-Respondent.pdf
498
Ediriainghe v. Bajendra.
1948Present: Dias J.
EDIRISENGHE, Petitioner and RAJENDRA, Respondent.
S. G. 399—Application for a Writ of Certiorari and Mandamus onthe Assistant Government Agent and DeputyFood Controller, Matara.
Writ of Certiorari and Mandamus—Application by trader for writ on Food Controller—-Is it a civil action ?—Food Control Ordinance—Chapter 132—Section 7a.
An application for a writ of certiorari and mandamus on the Food Controlleris not a civil action within the meaning of section 7a of the Food ControlOrdinance.
DIAS JT.—Edirisxnghe v. Rajerdra.
499
Application for a writ of certiorari and mandamus.
N. K. Cholcsy, K.C., with E. D. Cosme and S. Wijesinha, for thepetitioner.
H. TV. R. Weerasooriya, Cronm Counsel, with V. Tennekoon, CrownCounsel, for the respondent.
August 2, 1948. Dias J.—
The petitioner held an authority under the Food Control Ordinance,to deal wholesale in rice and other foodstuffs. He carried on this businessat Kirinda in Matara. He also dealt in textiles. This latter businesshe carried on with the leave and licence of his brother in the adjacentpremises.
On August 1, 1947, in the absence of the petitioner, the officers of theFood Control Department, as they were lawfully entitled to do, inspectedthe premises of the petitioner, and found everything in order. Theythen proceeded next door, and discovered a bag of rice. The petitionerswears in his affidavit that he knows nothing about this bag of rice, whichhe learnt had been deposited temporarily, not with any of his servants,but with Ratnatunga, his brother’s servant, by a man named Charles,who intended to utilise it on the following day for feeding some Buddhistmonks who were holding a retreat (vas). It is alleged that the FoodControl officers were told these circumstances. They measured therice and having sealed the bag directed Ratnatunga to preserve it in hiscustody. The petitioner says that the bag of rice is not his, that Ratna-tunga is not his servant, and that he is not responsible for the acts ordefaults of his brother’s servant.
The petitioner states that he has heard that after the Food Controlofficers left, Charles came and wanted to remove the bag. Ratnatungarefused to allow him to do so, when Charles came with several dayakayasof the temple and forcibly removed the bag despite the protests of Ratna-tunga, on the ground that the monks had to be given their meal. Thesubmission for the petitioner is that no offence or contravention of anylaw or regulation had been committed by Charles leaving the bag of ricein his brother’s boutique ; that he is not responsible for the bag beingthere ; and that, so far as he is concerned, the inspection of his premiseswhere he sold rice and foodstuffs disclosed no irregularity.
On August 21, 1947, the respondent, who is the Deputy Food Controller,Matara, wrote the following letter PI to the petitioner :
“ With reference to your letter of the 2nd instant handed to me atthe Kachcheri, I have the honour to inform you that for allowing thebag ' of seized rice to be removed from your premises, I hereby revoke theauthority granted to you under the Food Control Regulations,1938, as a wholesale dealer, in terms of Regulation 18 (1) of Head E,Part HI of the Food Control Regulations, 1938, read with Defence(Food Control) (Special Provisions) Regulations, 1943, with effectfrom September 20, 1947.
2
> J
(Irrelevant)
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DIAS J.—Edirisinghe v. Rajendra.
The petitioner has not produced a copy of his letter dated August 2,1947, to which reference is made in PI. His explanation is that he keptno copy of it. This may be true. On the other hand, the respondentin his affidavit R1 while referring to his letter PI, has not produced thepetitioner’s letter of August 2, 1947, and he does not refer to or explainin any way the connexion, if any, which exists between that letter and hisreply PI. In the circumstances, this Court has to decide this casewithout the evidence which that letter may reveal. I agree withMr. Weerasooriya, Crown Counsel, that, in the circumstances, no infer-ence adverse or otherwise, to either party ought to be drawn from thenonproduction of the letter of August 2, 1947.
The petitioner submits that he has been punished by being deprivedof his authority to trade although he has committed no offence, andwithout his being given any opportunity of being heard in his defence.This Court is asked by means of certiorari to declare that the respondentacted without jurisdiction, and by means of mandamus to compel therespondent to restore to him his authority to trade.
The Pood Control Regulations', 1938, Head E, Part 111, are to be foundin the Subsidiary Legislation of Ceylon, 1941 Supplement. The Regula-tion 18 under which the respondent purported to act is to be foundin the Defence (Miscellaneous) Regulations, and reads as follows :
18.(1) The Deputy Food Controller for any district or area may at
any time, if he is satisfied that any authorized distributor or wholesaledealer has acted in contravention of, or failed to comply with anyprovisions of the Ordinance or of these Regulations, or of the Controlof Prices Ordinance, No. 39 of 1939, or of any order or regulation rqsylethereunder ; or, if he considers it expedient so to do in the interestsof the public, by order revoke the authority granted, or the directimisissued to that distributor or dealer under Regulation 5 in this Part.
(2) Every order made by any Deputy Food Controller under para-graph (1) of this Regulation shall be final and conclusive.
It will be seenthatsub-seetion(l) of Regulation 18 creates two separatejurisdictions, namely (a) the authority or licence may be revoked if theDeputy Food Controller is satisfied that a distributor or wholesale dealerhas done something wrong, and (6) where the Deputy Food Controllerconsiders it expedient so to do in the interest of the public. It is commonground between the parties that if, in this case, the Court holds that theauthority of the petitioner was revoked under jurisdiction (a), the ordercannot stand, because the respondent acted without jurisdiction inas-much as the petitioner was not afforded an opportunity of being heardin his defence. On the other hand, it is agreed that if the petitioner’sauthority was revoked under jurisdiction (6), this would be a purelyadministrative or departmental matter, and that the relief claimedcannot lie—see Weeraratna v. Poulier'1.
The letter PI from the respondent to the petitioner was written beforethe present proceedings were instituted. The respondent does not saythat he was revoking the petitioner’s authority because he consideredit expedient to do so in the public interest. Had he said this, Mr. Choksy
1 (1947) 48 N. L. R. 441.
DIAS J.—Edirisinghe v. Rajendra.
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for the petitioner admits that he would have no case. PI clearly showBthat the authority of the petitioner was not revoked on this ground, butbecause “ he allowed the bag of seized rice to be removed from thepetitioner’s premises In other words, he was being punished for analleged wrongful act, which now turns out to be no wrongful act at allon the evidence and submissions made to me.
Learned Crown Counsel has argued that if the respondent had actedunder the first part of Regulation 18 (1) he would have said so. Hesubmits that the letter PI shows that the respondent did not proceedon the footing that there had been any contravention of the law, becausethe keeping of a bag of rice is not an offence. He seeks to connect upthe affidavit R1 filed after these proceedings began with PI in order toshow that the respondent acted under the second part of Regulation 18(11.This is what R1 says :
“ 2. The letter marked PI and annexed to the petitioner’s affidavitwas addressed by me to the petitioner.
I revoked on my own responsibility the authority granted tothe petitioner …. as I considered it expedient to do so inthe interests of the public in terms of Regulation 18 (1)
I exercised the power of revocation given to me by law in goodfaith after considering a report, the accuracy of which I had goodreason to believe ”.
One has the right to expect that public officers who are entrustedwith important functions like that of a Deputy Food Controller shouldbe familiar with the laws and regulations which they have to administer.Questions similar to the one raised here have been frequently before theCourts, and it would, indeed, be strange that the respondent should notbe aware of the principles involved when an authority like this is revoked.I find it difficult, if not impossible, to accede to the argument of CrownCounsel that the letter PI indicates that the respondent was purportingto act under the second jurisdiction vested in him by Regulation 18 (1).Why did not the respondent, if he was acting under the second jurisdiction,say in his letter PI that he considered it expedient in the interests ofthe public to revoke the petitioner’s authority ? Furthermore, theaffidavit R1 is produced after the pinch of the case had been ascertained.
As I have already pointed out, section 18 (1) creates two separate anddistinct jurisdictions available to the Deputy Food Controller. The firstjurisdiction arises only when he “ is satisfied ” that there has been abreach or a contravention of the regulations. In such a case the officeracts judicially, and he cannot be said to be “satisfied” until he hasgiven the petitioner an opportunity of being heard:The second jurisdic-
tion, which is not cognizable by the Courts, arises “ if he considers itexpedient in the interests of'the public ” to revoke the authority orlicence—see Miya v. The Controller of Textiles1. The letter PI clearlyshows that, rightly or wrongly, the respondent formed the view that the
1 {1947) 48 N. L. R. at p. 496.
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DIAS J.—Edirisinghe v. Rajendra.
petitioner had acted irregularly in allowing a bag of rice which was underseizure to be removed from his premises. It was for that reason alonethat the petitioner’s licence was revoked. He was, therefore, not actingunder the second jurisdiction created by section 18 (1). He was eitheracting under the first jurisdiction given him under section 18(11 or he wasacting without any jurisdiction at all. If the former, it was his duty togive the petitioner an opportunity of being heard. Crown Counsel isunable to justify the respondent’s action under the first jurisdiction.
I agree. The respondent, therefore, was acting without any lawfuljurisdiction at all. To condemn a person unheard offends against acardinal principle of natural justice and the petitioner is entitled to seekhis remedy in the Courts.
Crown Counsel argued that this Court had no power to issue a writof certiorari or mandamus on the respondent in any event. Section 7a ofthe Food Control Ordinance (Chap. 132) provides that “ No civil actionor criminal prosecution shall be instituted or maintained against theFood Controller, or any Deputy or Assistant Food Controller or anyother officer of Government in respect of any act bona fide done or omittedto be done in pursuance of any power or authority conferred or grantedby or under this Ordinance or any regulation made thereunder ”. It iscontended that writs of certiorari and mandamus are “ civil actions ”within the meaning of section 7 a, and, because the action of the respondentwas bona fide, this Court has no power to grant to the petitioner the reliefhe claims.
In Subramaniam Chetty v. Soysa 1 the majority of a Divisional Courtheld that a proceeding which resulted in a Fiscal’s sale being set aside,was “ an action ” within the meaning of section 3 of the Appeals (PrivyCouncil) Ordinance (Chap. 85). That section refers to “ Civil suits oractions in the Supreme Court ”. In the case In re GoonesinTia 2 this Courtheld where an application for a writ of certiorari against an Election Judgewas refused, that an appeal lay to the Privy Council against such orderbecause that proceeding was “ an action ” within the meaning of section 3.Gf. Controller of Textiles v. Mohamed Miya 3. It is, therefore, submittedthat because an application for a writ of certiorari or mandamus is “ anaction ”, therefore, the prohibition contained in section 7a of the FoodControl Ordinance applies to bar the power of this Court to issue amandate in the nature of certiorari or mandamus in order to correct anyabuse of power or excess of jurisdiction on the part of officers in the FoodControl Department. In my opinion, this submission is unsound. Theseproceedings may be “an action”, but I cannot hold that they are“ a civil action ” within the meaning of section 7a of the Food ControlOrdinance.
The petitioner's application is allowed ; but each party will bear hisown costs.
Application allowed.
1 (1923) 25 N. L. R. at p. 348.
3 (1948) 49 N. L. R. 105.
(1942) 44 N. L. R. 75.